HomeMy WebLinkAbout92-2893 CivilIN THE COURT
RTF
RICHARD L. EVANS' CUMBERLAND
Administrator of the Estate
of MARJORIE L. EVANS,
deceased
Plaintiff
CIVIL ACTION
V.
GORDON E. SIMMERS,
ISpOSALY
COMMUNI d WASTENo.INC., a NO. 2893 CIVI,
OF PA, INC. :
Defendants
BEFORE BAYLEY and OLER JJ.
ORDER OF COURT
AND NOW, this 190day Of October, 1992, upoi
ants' Preliminary objections to Plaintiff
Defend
motion
to strike paragraph 11(g) of the Complai
motion to strike paragraph ll(f) is DENIED.
BY THE COURT,
Bishop Nicklas Kauffman, Esq.
Two West Market Street
P.O. Box 952
York, PA 17405
Attorney for Plaintiff
Walter A. Tilley, III, Esq.
138 East Market Street
P.O. Box 2588
York, PA 17405-2588
Attorney for Defendants
:rc
)MMON PLEAS OF
,PENNSYLVANIA
1992
consideration of
,s Complaint, the
t is GRANTED; the
J.
RICHARD L. EVANS,
Administrator of the Estate
of MARJORIE L. EVANS,
deceased
Plaintiff
V.
GORDON E. SIMMERS,
COMMUNITY REFUSE DISPOSAL,
INC., and WASTE MANAGEMENT
OF PA, INC.
Defendants
OLER, J.
IN THE COURT OF ;OMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -
NO. 2893 CIVIL 1992
BEFORE BAYLEY and OLER, JJ.
OPINION AND ORDER OF COURT
For disposition in the present case are prel
to a negligence complaint. The preliminary object.
form of a motion to strike two averments as to negli
allegedly not in conformity with Pennsylvania
ry objections
as are in the
nce which are
Lle of Civil
Procedure 1019(a). Rule 1019(a) provides that [t]he material
facts on which a cause of action ... is based shall be stated in a
concise and summary form." Defendant contends that the challenged
averments constitute only "a bare allegation of negligence."' For
the reasons stated in this Opinion, the preliminary Dbjections will
be sustained in part and denied in part.
Statement of Facts. Plaintiff's complaint containing a
wrongful death count and a survival action count, alleges that
Plaintiff's decedent died as a result of bein* struck in a
crosswalk by a Mack truck driven by Defendant Simme4s in the course
1 Brief in Support of Preliminary Objections
at 4. Plaintiff has not submitted a brief in this
of Defendants,
case.
No. 2893 Civil 1992
of his employment. Paragraph 11 of the complaint re
as follows:
11. The negligence, carelessness and
recklessness of the Defendant consisted o the
following:
a. Failing to properly operate and
control said motor vehicle;
b. Failing to keep alert and maintain a
proper lookout for the presence of pedestrians
on the streets and highways;
C. Driving his vehicle in car less
disregard for others in violation of 7 Pa.
C.S.A. §3714;
d. Failing to exercise the high degree
of care required at an intersection and in
failing to maintain a proper lookout at said
intersection;
e. Failing to yield the right of Uay to
a pedestrian at a crosswalk at an
intersection;
f. Failing to exercise the degree of
care commensurate with the danger3 of
operating a Mack truck in the subject area;
g. Being otherwise negligent under the
circumstances.
Defendants, in their preliminary objections, have moved to strike
items f and g from the paragraph for failure to conform to rule of
court as to specificity.'
Statement of law. The area of law dealing with preliminary
objections to "catchall" allegations of negligence in a pleading
has been well summarized by Judge Lawrence F. Stengel of Lancaster
County in Derr v. Yingling, 72 Lancaster L.R. 351 (1991). The
following excerpts from Derr are adopted herein:
"In this ... action, the defendants have fil d what have come
2 See Pa. R.C.P. 1028(a)(2) (failure of ple
to law or rule of court as ground for preliminar3
2
ding to conform
objection).
No. 2893 Civil 1992
to be known as 'Connor['] preliminary objections.' ..
"In the technical language of negligence pleading, the
defendants have filed a motion to strike certait subparagraphs
because they are broad, vague, conclusory or general in nature....
"A motion to strike is generally limited to errors of form
where the alleged defects appear on the record or on the face of
the pleadings. Urban v. Urban, 332 Pa. Superior C . 373, 481 A.2d
662 (1984). The remedy of striking a complaint 'should be
sparingly exercised and only when a party can affirmatively show
prejudice.' Department of Environmental Resources v. Hartford
Accident & Indemnity Company, 40 Pa. Commonwealth t. 133, 138, 396
A.2d 885 (1979) . In ruling on a motion to stri a portions of a
complaint, the first line of inquiry concerns Pule 1019 of the
Pennsylvania Rules of Civil Procedure and whethe the language of
the complaint is in compliance with the Rule.
"Rule 1019(a) requires that the pleader set forth in concise
and summary form material facts on which a cause of action is
based. In Groff v. Lancaster General Hospital, 7 Lanc. L.R. 224,
(PEREZOUS, J., 1988), Judge PEREZOUS noted that Rale 1019 does not
require precision pleading of specific facts:
[A] reading of the caption o Rule
1019 reveals that this Rule commonly r quires
only general, not specific, averment . The
Rule does not require that all of the cts be
3 Connor v. Allegheny General Hospital, 501
600 (1983).
3
IPa. 306, 461 A.2d
No. 2893 Civil 1992
pleaded --only the material facts, and hen,
only in a summary manner. Pa. R.C.P.No.
1019(a). Specific averments are required in
other types of cases enumerated by the Rule.
See, Pa. R.C.P. 1019(b), (f), (h).
"The purpose of the complaint is to apprise t e defendant of
the nature and extent of the claims asserted an to inform the
defendant of the material facts which the plaintiff will seek to
prove in support of the claim. Simply stated, if the defendant
knows what the case is about after reading the complaint, then the
complaint is probably sufficient under Rule 1019. Ef the defendant
is not able to ascertain the nature and extent of the claim or is
not informed of the material facts which will be proven at trial,
then the complaint is insufficient....
"Our Superior Court has spoken very clearly or the question of
what is required of a complaint and what a complaint must do in
order to be in compliance with our Rules: '(A complaint must
apprise the defendant of the nature and extent of the plaintiff's
claim so that the defendant has notice of what the plaintiff
intends to prove at trial and may prepare to meet such proof with
his own evidence.' Weiss v. Equibank, 313 Pa. Superior Ct. 446,
453, 460 A.2d 271, 274-75 (1983), citing Lau sen v. General
Hospital of Monroe County, 259 Pa. Superior Ct. 10, 160, 393 A.2d
761, 766 (1978), rev'd on other grounds, 494 Pa. 138, 431 A.2d 237
(1981).
"Lower courts have broad discretion in determining the amount
4
No. 2893 Civil 1992
of detail that must be averred in a complaint since the standard of
pleading is incapable of precise measurement. Unit9d Refrigerator
Company v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253 (1963). The
pleading of evidentiary matters is not required. ommonwealth ex
rel., Milk Marketing Board v. Sunnybrook Dairies, Inc., 29 Pa.
Commonwealth Ct. 210, 214, 370 A.2d 765, 768 (1977), citing Local
163, International Union of United Brewery v. Watki s, 417 Pa. 120,
207 A.2d 776 (1965). Further, where facts are kn wn better or at
least as well to the defendant as to the plaintiff, a motion for a
more specific complaint will be denied. Sorber v. GI Corp., 70 D.
& C. 2d 624, 625-26 (1975). See also, Line Le ington Lumber &
Millwork Company, Inc. v. Pennsylvania Publishing orporation, 451
Pa. 154, 162, 301 A.2d 684, 689 (1973)....
"[With respect to the impact of Connor v. A legheny General
Hospital, 501 Pa. 306, 361 A.2d 600 (1983), in this area, t]he
precedential value of Connor [may] very well be overstated [ in some
cases]....
"In Connor, the Pennsylvania Supreme Court held that since the
plaintiff's complaint contained a general "catchall" allegation of
negligence, the plaintiff's proposed amendment did not change the
theory of her cause of action. 501 Pa. at 310. Consequently, the
plaintiff was permitted to amend her complai t to add a new
allegation of negligence despite the fact that, the statute of
limitations had run.
5
No. 2893 Civil 1992
"The dawn of a new age in negligence pleading was heralded by
the now famous footnote 3 of the Connor opinion. In footnote 3,
the Court admonished the defendant that:
If [it] did not know how it otherwise
fail[ed] to use due care and caution under the
circumstances,' it could have fil d a
preliminary objection in the nature of a
request for a more specific pleading or it
could have moved to strike that portion of
[plaintiff's] complaint.
Connor, 501 Pa. at 311, n.3, 461 A.2d at 602-603, n.3....
"The thrust of footnote 3 appears to have beelL a suggestion by
the Court that defense counsel might, in the future, consider
objecting to the overbroad, general and vacua averment of
negligence which typically was couched in language such as the
defendant was otherwise negligent' or the defendant failed to
exercise reasonable care.' An objection to such language would
proceed under the authority of Rule 1019 with a n dge in the right
direction by footnote 3 from the Connor opinion In fact, since
Connor was decided in 1983, the use of such "cat hall" provisions
appears to have decreased....
"This court is required to review the bomplaint in its
entirety. Any one of the averments of negligence, when viewed on
its own and out of the context of the complaint, ight appear to be
general, broad or vague. However, when considered in light of the
a different result may btain]." Derr v.
complaint as a whole, [ y
Yingling, 72 Lancaster L.R. 351, 351-57 (1991). 1A
s Judge Bayley of
N
No. 2893 Civil 1992
this Court has stated, -[wle interpret Connor
o mean that a
should not, by virtue of 'boiler plat averments' be
defendantof negligence."
against any conceivable theory
subject to defend a9 103 1985) (emphasis
Winters v. Loner
gan► 36 Cumberland L.J. 98,
added). item g of
p, lication of law to facts. In the presentcase,
11 of Plaintiff's complaint, alleging that the Defendant
paragraphis
driver was "otherwise negligent under the ci cumstances,
clearly the type of boilerplate allegation en omp
assed by the
Connor doctrine. It must therefore be stricke .
Item f of the
h however, is qualified in nature by reference to facts
paragraP ►
specific to this case; it is not boilerplate, an in the context o
spec subject the
be saidto subj
the entire complaint can not fairly ne li ence. For these
Defendants to any conceivable theory of g
reasons, the following Order will be entered:
ORDER OF COURT
a October, 1992, up n consideration of
AND NOW, this 2„$t� Y of Oc� p the
Defendants' Preliminary Objections to Plainti f s Complaint,
D the
motion to strike paragraph 11(g) of the Compla nt is GRANTED;
motion to strike paragraph 11(f) is DENIED.
BY THE COURT,
J
7
J.
No. 2893 Civil 1992
Bishop Nicklas Kauffman, Esq.
Two West Market Street
P.O. Box 952
York, PA 17405
Attorney for Plaintiff
Walter A. Tilley, III, Esq.
138 East Market Street
P.O. Box 2588
York, PA 17405-2588
Attorney for Defendants
: rc